HomeMy WebLinkAboutRedevelopment Agency - 196 Caulk IL i bus . 409A
RESOLUTION NO. 196
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF
THE CITY OF HUNTINGTON BEACH APPROVING THE SALE
OF REAL PROPERTY IN THE OAKVIEW REDEVELOPMENT
PROJECT AREA AND AUTHORIZING THE EXECUTION OF
A DISPOSITION AND DEVELOPMENT AGREEMENT
WHEREAS, the Huntington Beach Redevelopment Agency
(hereinafter referred to as the "Agency") under the provisions of
the California Community Redevelopment Law, Section 33000 et seq. of
the California Health and Safety Code, is engaged in activities
necessary for the development of the Oakview Redevelopment Project
Area (hereinafter referred to as the "Project Area") ; and
In order to effectuate the provisions of the Redevelopment
Plan relating to the Project Area, the Agency proposes to sell
certain property owned by it within the Project Area (hereinafter
referred to as the "Site") described and depicted in the Disposition
and Development Agreement; and
PHILLIP and ROXANNE ZISAKIS (hereinafter referred to as the
"Developer" ) has submitted to the Agency a written offer in the form
of a Disposition and Development Agreement (the "Agreement") ,
attached hereto as Exhibit "A" , to purchase the Site at fair market
value and to develop the Site for uses in accordance with the
Redevelopment Plan (said development as described in the Agreement
being hereinafter referred to as the "Project") ; and
The Agency has determined that the proposed Agreement
contains all the provisions, terms and conditions, includes all
obligations required by state and local law, and Developer possesses
the qualifications and financial resources necessary to acquire and
insure development of the Site in accordance with the purposes and
objectives of the Redevelopment Plan and the Project; and
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The Agency and the City Council of the City of Huntington
Beach have held a joint public hearing on the proposed sale of the
site pursuant to published notice as required by state law; and
The staff report pertaining to the Agreement, which has been
on display prior to the joint public hearing in accordance with
Section 33433 of the California Health and Safety Code, contains a
detailed description of the provisions of the Agreement; and
The Agreement provides for the participation by Agency in the
cost of installation and construction of certain public
improvements . The Agency finds that :
a. The buildings, facilities, structures, or other
improvements are of benefit to the project area or the immediate
neighborhood in which the project is located; and
b. No other reasonable means of financing such buildings,
facilities, structures, or other improvements are available to the
community.
The Agency has duly considered all terms and conditions of
the proposed sale, including the Agency' s obligation to purchase
certain property currently owned by the City according to provisions
of the Agreement, and believes that the development of the site
pursuant to the Agreement is in the best interests of the City and
the health, safety, morals and welfare of its residents, and in
accords with the public purposes and provisions of applicable state
and local law requirements; and
The Agency and the City have received and considered the
report of the Agency staff on the proposed development to be carried
out pursuant to the Agreement;. and
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Pursuant to the California Environmental Quality Act (CEQA)
the Agency has reviewed the Environmental Impact Report (the "EIR")
for the Oakview Redeveloment Project Area which has been approved
and certified by the City of Huntington Beach and the Agency concurs
in the adequacy of said EIR and the findings and conditions in the
City' s resolution of approval; and, additional review will occur at
the time of project entitlement.
NOW, THEREFORE, the Agency does hereby find, determine, order
and resolve as follows :
SECTION 1. The recitals set forth above are true and correct.
SECTION 2 . The proposed project is exempt from environmental
review until project entitlement.
SECTION 3 . The Agency finds and determines that the sale of
the Site at fair market value is justified based upon (i) the
upgrading influence that the proposed development will have on the
Project Area and the community; and (ii) enhanced revenues for the
Agency and the community.
SECTION 4 . The Agreement providing for the sale of the site
by the Agency to the Developer as described in the Agreement is
hereby approved.
SECTION 5 . The Chairman and the Agency Secretary are hereby ,
authorized to execute the disposition and development agreement and
any ancillary deeds and other documents relating thereto and to take
any and all other actions necessary or convenient to give effect to
this resolution.
196
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PASSED AND ADOPTED by the Redevelopment Agency of the City of
Huntington Beach at regular meeting thereof held on 20th day
of November , 1989 .
Chairman
ATTEST: APPROVED AS TO FORM:
40�e'
Agency Clerk A ency Counsel
INITIATED, REVIEWED AND APPROVED:
Special AgZncy ouns
C
Executive Director
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IN lL
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between the
REDEVELOPMENT AGENCY OF THE
CITY OF HUNTINGTON BEACH,
AGENCY,
and
PHILIP ZISAKIS and ROXANNE ZISAKIS,
DEVELOPER
�XNTR.I'T
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between the
T,
REDEVELOPMENT AGENCY OF THE
CITY OF HUNTINGTON BEACH
and
PHILIP ZISAKIS and ROXANNE ZISAKIS
TABLE OF CONTENTS
I . [ §100] SUBJECT- OF AGREEMENT 1
A. [ §101 ] Purpose of Agreement 1
B. [ §102 ] The Redevelopment Plan 1
C. [ §103 ] The Project Area 1
D. [ §104) The Site 1
E. [ §105 ) Parties to the Agreement 2
1 . [ §106) The Agency 2
i
2 . [ §107 ] The Developer 2
]
3 . [ §108] Prohibition Against
Change in Ownership,
Management and Control
of Developer 2
F. [ §109 ] Good Faith Deposit 4
II . [ §200) ASSEMBLY OF THE SITE 4
A. [ §201 ) Disposition of Sales Parcel 4
B. [ §202 ) Escrow 5
C. [ §203 ) Conveyance of Title and Delivery
of Possession 8
D. [ §204] Form of Deed for the Conveyance 8
E. [ §205 ] Condition of Title 9
i
F. [ §206] Agency Option 9
G. [ §207 ] Time for and Place of Delivery
of Deed 10
H. [ §208 ] Recordation of Deed 10
I . [ §209 ] Title Insurance 10
J. [ §210] Taxes and Assessments 10
K. [ §211 ] Occupants of the Sales Parcel 11
L. [ §.212 ) Condition of the Sales Parcel, 11
M. [ §213 ] Preliminary Work 11
N. [ §214] Conditions Precedent to
the Conveyance 12
O. [ §215 ] Zoning of the Sales Parcel and
the Participating Parcel 12
III . [ §300 ) DEVELOPMENT OF THE SITE 13
A. [ §301 ] Development of the Site by
the Developer 13
1 . [ §302 ] Scope of Development 13
2 . [ §303 ) Construction Drawings
and Related Documents 13
3 . [ §304) Agency Approval
of Plans, Drawings,
and Related Documents 14
4 . [ §30S] Cost of Construction 15
5 . [ §306 ] Construction Schedule 15
6. [ §307 ] Bodily Injury and
Property Damage Insurance 15
7 . [ §308] City and Other Govern-
mental Agency Permits 16
8. [ §309 ) Rights of Access 16
9 . [ §310] Local, State and Federal
Laws 17
10. [ §311] Antidiscrimination During
Construction 17
ii
B. [ §312 ] Taxes, Assessments, Encumbrances
and Liens 17
C. [ §313 ] Prohibition Against Transfer of
the Site, the Buildings or
Structures Thereon and Assignment
of Agreement 18
D. [ §314] Mortgage, Deed of Trust, Sale and
Lease-Back Financing; Rights of
Holders 18
1 . [ §315 ] No Encumbrances Except
Mortgages, Deeds of Trust,
or Sale and Lease-Back
for Development 18
2 . [ §316) Holder Not Obligated to
Construct Improvements 19
3 . [ §317 ] Notice of Default to
Mortgagee or Deed of Trust
Holders; Right to Cure 19
4. [ §318) Failure of Holder to
Complete Improvements 19
5 . [ §319 ) Right of the Agency to
Cure Mortgage or Deed of
Trust Default 20
E. [ §320] Right of the Agency to Satisfy
Other Liens on the Site After
Title Passes 21
F. [ §321 ] Certificate of Completion 21
IV. [ §400] USE OF THE SITE 22
A. [ §401 ] Uses 22
B. [ §402 ] Maintenance of the Site 24
C. [ §403 ] Rights of Access 24
D. [ §404] Effect of Violation of the
Terms and Provisions of this
Agreement After Completion of
Construction 24
iii
V. [ §500] GENERAL PROVISIONS 25
A. [ §501 ] Notices, Demands and Communica-
tions Between the Parties 25
B. [ §502 ] Conflicts of Interest 25
C. [ §503 ] Enforced Delay; Extension of
Times of Performance 26
D. [ §504] Nonliability of Officials and
Employees of the Agency 27
E. ( §505 ] , Inspection of Books and Records 27
VI . [ §600] DEFAULTS AND REMEDIES 27
A. [ §601 ] Defaults--General 27
B. [ §602 ] Legal Actions 27
1 . [ §603 ] Institution of Legal
Actions 27
2 . [ §604] Applicable Law 28
3 . [ §605] Acceptance of Service
of Process 28
C. [ §606] Rights and Remedies Are
Cumulative 28
D. [ §607 ] Inaction Not a Waiver of
Default 28
E. [ §608] Remedies and Rights Prior
to Conveyance 28
1 . [ §609] Damages 28
2 . [ §610] Specific Performance 29
3 . [ §611 ] Termination by the
Developer 29
4. [ §612 ] Termination by the
Agency 29
iv
F. [ §613 ] Remedies of the Parties for
Default After Passage of Title
and Prior to Completion of
Construction 30
1 . [ §614] Termination and Damages 31
2 . [ §615 ] Action for Specific
Performance 31
VII . [ §700 ) SPECIAL PROVISIONS 31
A. [ §701 ) Submission of Documents to the
Agency for Approval 31
B. [ §702 ] Agency Right to Acquire in the
Event of Default by the Developer 31
C. [ §703 ] Agency Demolition of Sales
Parcel 32
D. [ §704] Real Estate Commissions 32
E . [ §705 ] Successors in Interest 32
F. [ §706 ] Amendments to this Agreement 33
VIII . [ §800] ENTIRE AGREEMENT, WAIVERS 33
IX_ [ §900) TIME FOR ACCEPTANCE OF AGREEMENT BY
AGENCY 1 33
ATTACHMENTS
Attachment No. 1 Site Map
Attachment No. 2 Legal Description
Attachment No. 3 Schedule of Performance
Attachment No. 4 Grant Deed
Attachment No. 5 Scope of Development
Attachment No. 6 Certificate of Completion
v
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH
(the "Agency" ) and PHILIP ZISAKIS and ROXANNE ZISAKIS, husband
and wife (collectively the "Developer" ) . The Agency and the
Developer hereby agree as follows:
I . [ §100] SUBJECT OF AGREEMENT
A. [ §101 ] Purpose of Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan ( as hereinafter defined) for the Oakview
Project (the "Project" ) by providing for the disposition and -
development of certain property situated within the Project
Area (the "Project Area" ) of the Project. That portion of the
Project Area to be developed pursuant to this Agreement (the
"Site" ) is depicted on the "Site Map" , which is attached hereto
as Attachment No. 1 and incorporated herein by reference . This
Agreement is entered into for the purpose of developing the
Site and not for speculation in land holding. Completing the
development on the Site pursuant to this Agreement is in the
vital and best interest of the City of Huntington Beach,
California (the "City" ) and the health, safety, morals and
welfare of its residents, and in accord with the public
purposes and provisions of applicable state and local laws and
requirements under which the Project has been undertaken.
B. [ §102 ] The Redevelopment Plan
The Redevelopment Plan was approved and adopted on
TJovember 1, 19 82 by Ordinance No. 2582 of the City Council of
the City of Huntington Beach; said ordinance and the
Redevelopment Plan as so approved (the "Redevelopment Plan" )
are incorporated herein by reference.
C. [ §103 ] The Project Area
The "Project Area" is located in the City of
Huntington Beach, California (the "City" ) the exact boundaries
of which are specifically described in an instrument recorded
July 12 , 19 89 , No. 89-368003 Official Records of Orange
County which instrument is incorporated herein by reference and
made a part hereof.
D. [ §104] The Site
The Site is that portion of the Project Area
designated on the Site Map (Attachment No. 1) and described in
the "Legal Description" , which is attached hereto as Attachment
No. 2 and is incorporated herein by reference.
The Site consists of the following:
d
1. That certain portion of the Site which is
designated on the Site Map (Attachment No. 1) as
the "Participating Parcel" ; and
2 . That certain portion of the Site which is
designated on the Site Map (Attachment No . 1) as
the "Sales Parcel" .
E. [ §105 ] Parties to the Agreement
1 . [ §106 ] The Agency
The Agency is a public body, corporate and
politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California. The principal
office of the Agency is located at City Hall, 2000 Main Street,
Huntington Beach, California 92648.
"Agency" , as used in this Agreement, includes the
Redevelopment Agency of the City of Huntington Beach, and any
assignee of or successor to its rights, powers and
responsibilities .
2 . [ §107 ] The Developer
The Developer is Philip Zisakis and Roxanne
Zisakis, husband and wife. The principal office and mailing
address of the Developer for the purposes of this Agreement is:
Philip Zisakis
c/o National Auto Glass Company
17131 Beach Boulevard
Huntington Beach, CA 92647
3 . [ §108]- Prohibition Against Change in Ownership,
Management and Control of Developer
The qualifications and identity of the Developer
are of particular concern to the City and the Agency. It is
because of those qualifications and identity that the Agency
has entered into this Agreement with the Developer. No
voluntary or involuntary successor in interest of the Developer
shall acquire any rights or powers under this Agreement except
as expressly set forth herein.
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5551n/2460/37 -2-
The Developer shall not assign all or any part of
this Agreement or any rights hereunder or without the prior
written approval of the Agency. The Agency shall not
unreasonably withhold its approval of an assignment or use of a
partnership which includes Philip Zisakis and/or Roxanne
Zisakis as a general partner, provided that: ( 1) the assignee
partnership shall expressly assume the obligations of the
Developer pursuant to this Agreement in writing satisfactory to
the Agency; (2 ) the original Developer shall remain fully --
responsible for the performance and liable for the obligations
of the Developer pursuant to this Agreement; and (3 ) the
assignee (or partnership) is financially capable of performing
the duties and discharging the obligations it is assuming.
Developer shall only sell, transfer, convey or
assign the Site as a whole and is not permitted to subdivide -
the Site for the duration of the Redevelopment Plan without
prior consent of the Agency.
In the event that, contrary to or pursuant to the
provisions of this Agreement, the Developer does sell,
transfer, convey, or assign any part of the Site or the
buildings or structures thereon prior to the issuance of a
Certificate of completion for the Site, the Agency shall be
entitled to increase the purchase price paid by the Developer
for the Sales Parcel by the amount that the consideration
payable for such assignment or transfer is in excess of the
purchase price paid by the Developer plus the cost of
improvements and development, including carrying charges and
costs related thereto. The consideration payable for such
assignment or transfer to the extent it is in excess of the
amount so authorized, shall belong and be paid to the Agency
and until so paid the Agency shall have a lien on the site and
any part involved for such amount.
In the absence of specific written agreement by
the Agency, no such transfer, asssignment or approval by the
Agency shall be deemed to relieve the Developer or any other
party from any obligation under this Agreement.
All of the terms, covenants and conditions of
this Agreement shall be binding upon and shall inure to the
benefit of the Developer and the permitted successors and
assigns of the Developer. Whenever the term "Developer" is
used herein, such term shall include any other permitted
successors and assigns as herein provided.
The restrictions of this Section 108 shall terminate
and be of no further force and effect upon issuance by the
Agency of a Certificate of Completion for all improvements to
be provided by the Developer pursuant to this Agreement as
described in Section 321 of this Agreement.
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F. [ §109 ] Good Faith Deposit
The Developer has, prior to the approval of this
Agreement by the Agency, delivered to the Agency a good faith
deposit in the amount of Twenty-Five Thousand Dollars ($25, 000)
(the "Good Faith Deposit" ) as security for the performance of
the obligations of the Developer to be performed prior to the
return of the deposit to the Developer, or its retention by the
Agency as liquidated damages in accordance with the provisions
of this Agreement. The receipt of the Good Faith Deposit is
hereby acknowledged by the Agency.
The Good Faith Deposit, at the option of the
Developer, may be in the form of ( i ) cash; or ( ii ) cashier' s or
certified check. The Developer may change the form of the
deposit from time to time, at its option, to any other of the
permitted forms of deposit. The deposit, if cash or certified
or cashier' s check, shall be deposited in an account of the
Agency in a bank or trust company selected by it.
Upon termination of this Agreement as provided in
Section 612 of this Agreement, the Good Faith Deposit,
including all interest payable thereon after such termination,
or, if a surety bond, the proceeds thereof, shall be retained
by the Agency as provided therein.
Upon termination of this Agreement as provided in 7
Section 611 of this Agreement, the Good Faith Deposit shall be
returned to the Developer by the Agency, as provided therein. 1
The Agency shall be under no obligation to earn
interest on the Good Faith Deposit. Upon termination of this
Agreement or completion of the "Developer Improvements" (as
hereafter defined in Section 302 of this Agreement) , interest
earned shall be retained by or returned to the party entitled
to the retention or return of the Good Faith Deposit.
If the "Conveyance" ( as defined in Section 204) is
effected pursuant to this Agreement, the Agency shall return
the Good Faith Deposit (together with any interest earned
thereon) to the Developer.
II . [ §200] ASSEMBLY OF THE SITE
A. [ §201 ] Disposition of the Sales Parcel
The Developer shall purchase from the Agency the
Sales Parcel; in accordance with and subject to all of the
terms, covenants and conditions of this Agreement, the Agency
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agrees to sell to the Developer the Sales Parcel. Thereupon,
the Developer agrees to and shall develop the Site within the
times, for the uses and subject to the terms, conditions and
provisions as hereinafter provided.
T P c ase Price for the Sales Parcel shall be Two
IV
Hundred -r- *Thousand, Dollars($ -;68b) payable in cash at close of escrow.
'In addition to the consideration set forth in this
Section 201, the Developer shall pay all of those costs,
charges, fees and expenses as hereafter expressly provided to
kC� e paid by Developer pursuant to this Agreement and shall, at
its cost, provide all ,of the improvements required by this Agreement to be provided by the Developer (the "Developer
Improvements" ) .
B. [ §202 ] Escrow
The Agency agrees to open an escrow (the "Escrow" )
with Tiempo Escrow, or with another mutually agreeable escrow
company (the "Escrow Agent" ) , by the time established therefor
in the Schedule of Performance (Attachment No. 3 ) . The escrow
described in this Section 202 shall be referred to as the
"Escrow", and the conveyance provided for in this Section 204
shall be referred to as the "Conveyance" . This Agreement
constitutes the joint basic escrow instructions of the Agency
and the Developer for the Conveyance, and a duplicate original
of this Agreement shall be delivered to the Escrow Agent upon
the opening of the Escrow. The Agency and the Developer shall
provide such additional escrow instructions as shall be
necessary for and consistent with this Agreement. The Escrow
Agent is hereby empowered to act under this Agreement, and the
Escrow Agent, upon indicating within five (5) days after the
opening of the Escrow its acceptance of the provisions of this
Section 204, in writing, delivered to the Agency and the
Developer, shall carry out its duties as Escrow Agent hereunder.
Upon delivery of the "Grant Deed" (as hereafter
defined) to the Escrow Agent by the Agency pursuant to
Section 207 of this Agreement, the Escrow Agent shall record
such Deed when title can be vested in the Developer in
accordance with the terms and provisions of this Agreement.
The Developer shall accept conveyance of title or possession of
the Sales Parcel as provided in the Schedule of Performance
(Attachment No. 3 ) . The Escrow Agent shall pay any applicable
transfer tax. Any insurance policies covering the Sales Parcel
or any parcel are not to be transferred.
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The Developer shall pay in escrow to the Escrow Agent
the following fees, charges and costs promptly after the Escrow
Agent has notified the Developer of the amount of such fees,
charges and costs, but not earlier than ten ( 10) days prior to
the scheduled date for closing the Escrow:
1. One-half ( 1/2) of the escrow fee; and
2 . That portion of the premium for the title
insurance policy to be paid by the Developer as
set forth in Section 209 of this Agreement.
The Developer shall also deposit with the Escrow
Agent any balance due as all or part of the Purchase Price by
the time established therefor in the Schedule of Performance
(Attachment No. 3 ) .
The Agency shall pay in escrow to the Escrow Agent
the following fees, charges and costs promptly after the Escrow
Agent has notified the Agency of the amount of such fees,
charges and costs, but not earlier than ten ( 10) days prior to
the scheduled date for closing the Escrow:
1 . One-half ( 1/2 ) of the escrow fee;
2 . Cost of drawing the deed;
3 . Recording fees;
4. Notary fees;
5 . Any State, County or City documentary stamps;
6. Any transfer tax;
7 . That portion of the premium for the title
insurance policy to be paid by the Agency as set
forth in Section 209 of this Agreement; and
8. Ad valorem taxes, if any, upon the Sales Parcel
for any time prior to transfer of title .
The Agency shall timely and properly execute,
acknowledge and deliver a deed in substantially the form of the
"Grant Deed" (which is attached to this Agreement as Attachment
No. 4 and is incorporated herein) , together with an estoppel
certificate certifying that the Developer has completed all
acts (except deposit of the Purchase Price) necessary to
entitle the Developer to such conveyance, if such be the fact.
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The Escrow Agent is authorized to:
1 . Pay, and charge the Agency and Developer,
respectively, for any fees, charges and costs
payable under this Section 202 of this
Agreement. Before such payments or charges are
made, the Escrow Agent shall notify the Agency
and the Developer of the fees, charges and costs
necessary to clear title and close the Escrow.
2 . Disburse funds and deliver the deed and other
documents to the parties entitled thereto when
the conditions of this Escrow have been fulfilled
by the Agency and the Developer. Funds deposited
as part of the Purchase Price shall not be
disbursed by the Escrow Agent unless and until
the Escrow Agent has recorded the Grant Deed
(Attachment No . 4) and has delivered to the
Developer a title insurance policy insuring title
and conforming to the requirements of Section 209
of this Agreement.
3 . Record any instruments delivered through this
Escrow, if necessary or proper, to vest title in
the Developer in accordance with the terms and
provisions of this Agreement.
All funds received in 'this Escrow shall be deposited
by the Escrow Agent, with other escrow funds of the Escrow
Agent in an interest earning general escrow account or accounts
with any state or national bank doing business in the State of
California. Such funds may be transferred to any other general
escrow account or accounts. All disbursements shall be made by
check of the Escrow Agent. All adjustments are to be made ;on
the basis of a thirty (30) day month.
If this Escrow is not in condition to close on or
before the time for conveyance established in Section 203 of
this Agreement, either party who then shall have fully
performed the acts to be performed before the conveyance of
title may, in writing, demand from the Escrow Agent the return
of its money, papers or documents deposited with the Escrow
Agent. No demand for return shall be recognized until ten ( 10)
days after the Escrow Agent shall have mailed copies of such
demand to the other party or parties at the address of its or
their principal place or places of business. Objections, if
any, shall be raised by written notice to the Escrow Agent and
to the other party within the ten ( 10) day period, in which
event the Escrow Agent is authorized to hold all money, papers
and documents with respect to the Site until instructed by a
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mutual agreement of the parties or by a court of competent
jurisdiction. If no such demands are made, the Escrow shall be
closed as soon as possible.
The Escrow Agent shall not be obligated to return any
such money, papers or documents except upon the written
instructions of both the Agency and the Developer or until the
party entitled thereto has been determined by a final decision
of a court of competent jurisdiction.
Any amendment to these Escrow instructions shall be
in writing and signed by both the Agency and the Developer. At
the time of any amendment, the Escrow Agent shall agree to
carry out its duties as Escrow Agent under such amendment.
All communications from the Escrow Agent to the
Agency or the Developer shall be directed to the addresses and
in the manner established in Section 501 of this Agreement for
notices, demands and communications between the Agency and the
Developer.
The liability of the Escrow Agent under this
Agreement is limited to performance of the obligations imposed
upon it under Sections 202 to 209, both inclusive, of this
Agreement.
C. [ §203 ] Conveyance of Title and Delivery of Possession
Subject to any extensions of time mutually agreed
upon between the Agency and the Developer, the Conveyance shall
be completed on or prior to the date specified therefor in the
Schedule of Performance (Attachment No. 3 ) . Said Schedule of
Performance (Attachment No. 3 ) is subject to revision from time
to time as mutually agreed upon in writing between the
Developer and the Agency. The Agency and the Developer agree
to perform all acts necessary to conveyance of title in
sufficient time for title to be conveyed in accordance with the
foregoing provisions.
Possession shall be delivered to the Developer
concurrently with the conveyance of title, except that limited
access may be permitted before conveyance of title as permitted
in Section 213 of this Agreement. The Developer shall accept
title and possession on or before the date established in the
Schedule of Performance (Attachment No. 3 ) for the Conveyance.
D. [ §204] Form of Deed for the Conveyance
The Agency shall convey to the Developer title to the
Sales Parcel, excepting therefrom mineral rights, in the
condition provided in Section 205 of this Agreement by grant
deed in the form of the Grant Deed (Attachment No. 4) .
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E. [ §205 ] Condition of Title
The Agency shall convey to the Developer fee simple
merchantable title to the Sales Parcel, excepting therefrom
mineral rights, free and clear of all recorded or unrecorded
liens, encumbrances, covenants, assessments, easements, leases
and taxes, except for covenants and easements of record at the
time of execution of this Agreement which the Developer has
approved in writing, the Redevelopment Plan, the provisions
contained in the Grant Deed (Attachment No . 4) and such other
encumbrances to which the Developer may consent; provided
further that the Agency shall retain and Developer shall convey
access easements as shown on the Site Map (Attachment No. 1)
( "Agency Access Easement" ) for the benefit of the Agency and
the adjacent properties shown on the Site Map (Attachment No.
1) (the "Benefitted Properties" ) . The condition of title shall
be compatible with and not preclude development of the
"Developer Improvements" ( as hereafter defined) , and the
Developer shall review the easement prior to and as a condition
of closing consistent with the foregoing. The parties shall
act reasonably in evaluation of any encumbrances and shall act
diligently and promptly to conform the condition of title to
that required for the Developer to proceed with development of
the Developer Improvements. In no event shall the Developer be
required to accept title subject to a deed of trust or mortgage.
The Agency shall reserve and except from the
Conveyance all interest of the Agency in oil, gas, hydrocarbon
substances and minerals of every kind and character lying more
than 500 feet below the surface, together with the right to
drill into, through, and to use and occupy all parts of the
Sales Parcel lying more than 500 feet below the surface thereof
for any and all purposes incidental to the exploration for and
production of oil, gas, hydrocarbon substances or minerals from
said site or other lands, but without, however, any right to
use either the surface of the Sales Parcel or any portion
thereof within 500 feet of the surface for any purpose or
purposes whatsoever.
F. [ §206] Agency Option
Developer hereby grants to Agency the option ( "Agency
Option" ) to reacquire that portion of the Site reflected on the
Site Map (Attachment No. 1) as the "Option Parcel" pursuant to
and subject to the terms set forth in the form of grant deed
attached hereto as Attachment No. 7 (the "Option Grant Deed" ) .
Developer shall execute and deposit the Option Grant Deed into
a separate escrow established with the Escrow Agent prior to
conveyance of the Sales Parcel from Agency to Developer. At
the same time Developer submits the executed Option Grant Deed
to the Escrow Agent, it shall execute escrow instructions which
provide as follows:
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1 . The Option Grant Deed shall be delivered to the
Agency only in the event Agency first provides written
certification to the Escrow Agent that it has approved a
disposition and development agreement or owner participation
agreement or other development entitlement (the "Agency
Approval" ) providing for the construction of a development on
the Option Parcel, which development is required by recorded
instrument to provide nine (9) non-exclusive parking spaces,
free of charge and without time-of-day restrictions, in
perpetuity for use by employees or patrons of the development
on the Site .
2 . The instrument to be recorded shall also provide
that no charges of any kind are to be levied against• the users
of said nine (9) non-exclusive parking spaces for use of said
spaces, nor against Developer for any maintenance, expense or
other costs of building, operating or maintaining the
development pursuant to the Agency Approval .
3 . The instrument to be recorded shall also provide
that the owner and/or operator of the development pursuant to
the Agency Approval will permit the use of parking, facilities
within said development by employees and patrons of the
development on the Site equal to the rights and costs to
members of the general public to use such parking facilities. '
4. If Agency has not provided a certification
meeting the requirments set forth in this Section 206 within
three .(3 ) years of the executiorf of this Agreement by Agency,
the Escrow Agent shall return the Option Grant Deed to
Developer and Agency shall have no further right to reacquire
the Option Parcel pursuant to the option created by this
Section 206 .
G. [ §207 ] Time for and Place of Delivery of Deed
Subject to any mutually agreed upon extension of
time, the Agency shall deposit the Grant Deed (Attachment
No. 4) with the Escrow Agent on or before the date established
for the date of the Conveyance pursuant to the Schedule of
Performance (Attachment No. 3 ) .
H. [ §208 ] Recordation of Deed
The Escrow Agent shall file the Grant Deed for
recordation among the land records in the Office of the County
Recorder for Orange County, and shall deliver the Purchase
Price to the Agency after delivery to the Developer of a title
insurance policy insuring title in conformity with Section 209
of this Agreement.
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I . [ §209 ] Title Insurance
Concurrently with recordation of the Grant Deed
(Attachment No. 4) conveying title to the Site, First American
Title, (the "Title Company" ) , shall provide and deliver to
Developer a title insurance policy issued by the Title Company
insuring that the title to the Sales Parcel is vested in
Developer in the condition required by Section 205 of this
Agreement. The Title Company shall provide the Agency with a
copy of the title insurance policy and the title insurance
policy shall be for the amount of the Purchase Price. The
Agency shall bear that amount equal to the cost of a standard
ALTA policy for the Purchase Price. All additional costs
incurred for or related to such title insurance shall be borne
solely by the Developer. The Developer may, at its option and
at its cost, obtain coverage in excess of the Purchase Price
and may obtain endorsements or an ALTA policy.
All costs for title insurance with respect to the
Participating Parcel shall be borne solely by the Developer.
J. [ §210 ] Taxes and Assessments
Ad valorem taxes and assessments, if any, on the
Sales Parcel, levied, assessed or imposed for any period
commencing prior to conveyance of title, shall be borne by
Agency, and any of such taxes imposed after conveyance of title
to the Sales Parcel (and ad valorem taxes and assessments, if
any, on the Sales Parcel, - and taxes upon the Agreement or the
Agreement) shall be borne by the` Developer. All other taxes on
the Sales Parcel, and all taxes with respect to the
Participating Parcel, whenever assessed, shall be borne by the
Developer.
K. [ §211 ] Occupants of the Sales Parcel
Possession of the Sales Parcel shall be delivered to
the Developer and title shall be conveyed to it with no
possessory rights or possession by others except as set forth
in Section 206 hereof.
L. [ §212 ] Condition of the Sales Parcel
It shall be the sole responsibility of the Developer,
at Developer' s expense, to investigate and determine the soil
conditions of the Sales parcel for the development to be
constructed by Developer. If the soil conditions of the Sales
Parcel are not in all respects entirely suitable for the use or
uses to which the Sales Parcel will be put, then it is the sole
responsibility and obligations of Developer to take such action
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as may be necessary to place the Sales parcel in a condition
entirely suitable for the development of the Sales Parcel and
the Participating Parcel .
After the close of escrow, the Developer agrees to
indemnify, hold harmless, and defend the City and/or Agency for
any claims which may be asserted against the City and/or the
Agency under the Comprehensive Environmental Response,
Compensation and Liability Act; as amended, (42 U. S.C. §9601 et
seq. ) ( "CERCLA" ) and/or any other federal or state remedial
environmental legislation which claims are based on the fact
that the City or Agency held title to the Site.
M. [ §213 ] Preliminary Work
Prior to the conveyance of title, representatives -of
Developer shall have the right of access to the Sales Parcel at
all reasonable times for the purpose of obtaining data and
making surveys and tests necessary to carry out this Agreement.
Any preliminary work undertaken on the Sales Parcel
by Developer prior to conveyance of title thereto shall be done
only after written consent of the Agency, which consent shall
not be unreasonably withheld, and at the sole expense of
Developer. ''"
The Developer shall save and protect the Agency and
the City against any claims resulting from all preliminary
work, access or use of the Sales Parcel undertaken pursuant to
this Section 213 . Copies of data, surveys and tests obtained
or made by the Developer on the Sales Parcel pursuant to this
Section 213 shall be filed with the Agency within fifteen (15 )
days after receipt by the Developer. Any preliminary work by
the Developer shall be undertaken only after securing any
necessary permits from the appropriate governmental agencies.
N. [ §214] Conditions Precedent to the Conveyance
Prior to and as conditions to the close of escrow for
the Conveyance, the Developer shall complete each of the
following by the respective times established therefor in the
Schedule of Performance (Attachment No . 3 ) :
1 . the Developer deposits the Good Faith Deposit
with the Agency;
2 . the Developer has paid into Escrow all funds
constituting the Purchase Price;
3 . the Developer shall not be in material default of
this Agreement and shall have obtained building
permits for the Developer Improvements;
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4. the Developer provides proof satisfactory to the
Agency that the Developer has obtained a binding
loan commitment (for each of construction and
take-out financing) for all of the Developer
Improvements;
5 . the Developer provides satisfactory proof (a copy
of a preliminary title report) that the title to
the Participating Parcel is vested in the
Developer; and
6. the Developer provides proof of insurance
(certificates) conforming to Section 307 of this
Agreement.
The foregoing items numbered 1 to 6, inclusive, together
constitute the "Conditions Precedent to the Conveyance. "
0. [ §215] Zoning of the Sales Parcel and the
Participating Parcel
The Developer shall be responsible to make
appropriate application to the City of Huntington Beach
( "City" ) to satisfy all provisions of the California
Subdivision Map Act (Government Code Section 66410, et seq. )
and local enactments pursuant thereto applicable with respect
to the development of the Site. Agency agrees to cooperate
with the Developer and the City in all such land use
applications, including co-signing as applicant prior to
conveyance of the Site, so long as said applications are
consistent with the development contemplated by this Agreement.
III. [ §300] DEVELOPMENT OF THE SITE
A. [ §301] Development of the Site by the Developer,
1 . [ §302 ] Scope of Development
The Site shall be developed as provided in the
"Scope of Development" , attached hereto as Attachment No. 5 and
incorporated herein.
The development shall include any plans and
specifications submitted to Agency for approval, and shall
incorporate or show compliance with all applicable California
Environmental Quality Act mitigation measures.
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l
2 . [ §303 ] Construction Drawings and Related
Documents
By the time set forth therefor in the Schedule of
Performance (Attachment No. 3) , the Developer shall prepare and
submit to the Agency, construction drawings, landscape plan,
and related documents for development of the Site for
architectural review and written approval. Approval of the
drawings and specifications, as provided in the Schedule of-
Performance (Attachment No. 3 ) , will be granted by the Agency
if they conform to the Scope of Development (Attachment
No. 5) . Any items so submitted and approved in writing by the
Agency shall not be subject to subsequent disapproval .
The landscaping, and finish grading plans shall
be prepared by a professional landscape architect who may be -
the same firm as the Developer' s architect. Within the times
established in the Schedule of Performance (Attachment No. 3 ) ,
the Developer shall submit to the Agency for approval the name
and qualifications of its landscape architect.
During the preparation of all drawings and plans,
staff of the Agency and the Developer shall hold regular
progress meetings to coordinate the preparation of, submission
to, and review of drawings, plans and related documents by the
Agency. The staff of Agency and the Developer shall
communicate and consult informally as frequently as, is
necessary to insure that the formal submittal of any documents
to the Agency can receive prompt and speedy consideration.
Except as expressly provided in Section 215 of
this Agreement, Developer shall make application to the
Department of Community Development of the City of Huntington
Beach for all approvals necessary under the statutes, code,
ordinances and resolutions of the City of Huntington Beach and
any other statutes( s) or code( s) applicable to the Developer
Impovements which requires approval, including, but not limited
to, all approvals for permits, licenses, and certificates of
occupancy.
If any revisions or corrections shall be required
by the City Department of Community Development or any other
official, agency, department, division or bureau of the City of
Huntington Beach having jurisdiction, the Developer and the
Agency shall cooperate to accommodate such requirements.
3 . [ §304) Agency Approval of Plans, Drawings, and
Related Documents
The Agency shall have the right of architectural
and planning review of all plans and submissions including any
changes therein.
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�} l
Provided that the submissions by the Developer
are made timely and are complete, the Agency shall approve or
disapprove the plans, drawings and related documents referred
to in Sections 303 and 304 of this Agreement within the times
established in the Schedule of Performance (Attachment No. 3 ) .
Failure by the Agency to either approve or disapprove within
the times established in the Schedule of Performance
(Attachment No. 3) shall be deemed an approval . Any
disapproval shall state in writing the reasons for
disapproval. The Developer, upon receipt of a disapproval
based upon powers reserved by the Agency hereunder, shall
revise such portions and resubmit to the Agency as soon as
possible after receipt of the notice of disapproval as provided
in the Schedule of Performance (Attachment No. 3 ) .
If the Developer desires to make any substantial
changes in the construction plans after their approval by the
Agency, the Developer shall submit the proposed change to the
Agency for its approval . If the construction plans, as
modified by the proposed change, conform to the requirements of
Section 304 of this Agreement and the Scope of Development
(Attachment No. 5 ) the Agency shall approve the proposed change
and notify the Developer in writing within 30 days after
submission to the Agency. Such change in construction plans
shall, in any event, be deemed approved by the Agency unless
rejected, in whole or in part, by written notice thereof by the
Agency to the Developer, setting forth the reasons therefor,
and such rejection shall be made within said 30-day period.
4. [ §305 ] Cost of Construction
The cost of developing the Site and constructing
all improvements thereon shall be borne by the Developer,
except for the work expressly set forth in the Agreement to be
performed by the Agency or others.
5 . [ §306] Construction Schedule
After the Conveyance, the Developer shall
promptly begin and thereafter diligently "prosecute to
completion the construction of the Developer Improvements and
the development of the Site. The Developer shall begin and
complete all construction and development within the times
specified in the Schedule of Performance (Attachment No. 3 ) .
6. [ §307 ] Bodily Injury and Property
Damage Insurance
The Developer shall defend, assume all
responsibility for and hold the Agency, its officers .and
employees, harmless from, all claims or suits for, and damages
to, property and injuries to persons, including accidental
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7 1
death (including attorneys fees and costs) , which may be caused
by any of the Developer' s activities under this Agreement,
whether such activities or performance thereof be by the
Developer or anyone directly or indirectly employed or
contracted with by the Developer and whether such damage shall
accrue or be discovered before or after termination of this
Agreement. The Developer shall take out and maintain during
the life of this Agreement, a comprehensive liability policy in
the amount of One Million Dollars ($1,000, 000) combined single
limit policy, consistent with the City' s present policy on
insurance, as shall protect the Developer, City and Agency from
claims for such damages.
The Developer shall furnish a certificate of
insurance countersigned by an authorized agent of the insurance
carrier on a form of the insurance carrier setting forth the
general provisions of the insurance coverage. This
countersigned certificate shall name the City and the Agency
and their respective offices, agents, and employees as
additional insureds under the policy. The certificate by the
insurance carrier shall contain a statement of obligation on
the part of the carrier to notify City and the Agency of any
material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any
such material change, cancellation or termination. Coverage 4
provided hereunder by the Developer shall be primary insurance
and not contributing with any insurance maintained by the
Agency or City, and the policy shall contain such an
endorsement. The insurance policy or the certificate of
insurance shall contain a waiver of subrogation for the benefit
of the City and the Agency. The required certificate shall be
furnished by the Developer at the time set forth therefor in
the Schedule of Performance (Attachment No. 3 ) .
The Developer shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency
that any contractor with whom it has contracted for the
performance of work on the Site or otherwise pursuant to this
Agreement carries workers' compensation insurance as required
by law.
The obligations set forth in this Section shall
remain in effect only until a final Certificate of Completion
has been furnished for all of the Developer Improvements as
hereafter provided in Section 321 of this Agreement.
7 . [ §3081 City and Other Governmental
Agency Permits
Before commencement of construction or
development of any buildings, structures or other works of
improvement upon the Site or within the Project Area, the
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Developer shall, at its own expense, secure or cause to be
secured any and all permits which may be required by the City
or any other governmental agency affected by such construction,
development or work. It is understood that the Developer' s
obligation is to pay all necessary fees and to timely submit to
the City final drawings with final corrections to obtain a
building permit; the Agency will, without obligation to incur
liability or expense therefor, use its best efforts to expedite
issuance of building permits and certificates of occupancy for
construction that meets the requirements of the City Code.
8. [ §3091 Rights of Access
For the purpose of assuring compliance with this
Agreement, representatives of the Agency and the City shall
have the right of access to the Site, without charges or fees,
at normal construction hours during the period of construction
for the purposes of this Agreement, including, but not limited
to, the inspection of the work being performed in constructing
the improvements, so long as they comply with all safety
rules. Such representatives of the Agency or of the City shall
be those who are so identified in writing by the Executive
Director of the Agency. The Agency shall hold the Developer
harmless from any bodily injury or related damages arising out
of the activities of the Agency and the City as referred to in
this Section 309.
The Developer and •the Agency agree to cooperate
in placing and maintaining on the Site one sign indicating the
respective parts of the Developer and the Agency in the
Project. The cost of the sign shall be borne solely by the
Developer. The Developer may additionally erect and maintain
one sign pertaining to the leasing of the Site, which may be
maintained for a reasonable period of time to initially
accomplish its leasing purpose.
9 . [ §310] Local, State and Federal Laws
The Developer shall carry out the construction of
the improvements in conformity with all applicable laws,
including all applicable federal and state labor standards,
provided, however, Developer and its contractors, successors,
assigns, transferees, and lessees are not waiving their rights
to contest any such laws, rules or standards.
10. [ §311 ] Antidiscrimination During
Construction
The Developer, for itself and its successors and
assigns, agrees that in the construction of the improvements
provided for in this Agreement, the Developer will not
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discriminate against any employee or applicant for employment
because of race, color, creed, religion, age, sex, marital
status, handicap, national origin or ancestry.
B. [ §312 ] Taxes, Assessments, Encumbrances
and Liens
The Developer shall pay when due all ad valorem taxes
and assessments on the Site and levied subsequent to a
conveyance of title to the Site. Prior to issuance of a
Certificate of Completion pursuant to Section 321, the
Developer shall not place or allow to be placed on the Site or
any part thereof any mortgage, trust deed, encumbrance or lien
other than as expressly allowed by this Agreement. The
Developer shall remove or have removed any levy or attachment
made on any of the Site or any part thereof, or assure the
satisfaction thereof within a reasonable time but in any event
prior to a sale thereunder. Nothing herein contained shall be
deemed to prohibit the Developer from contesting the validity
or amounts of any tax assessment, encumbrance or lien, nor to
limit the remedies available to the Developer in respect
thereto. ,
C. [ §313 ] Prohibition Against Transfer of the Site,
the Buildings or Structures Thereon and
Assignment of Agreement
Prior to the issuance -by the appropriate governmental
authority of a Certificate of Completion (pursuant to Section
321 of this Agreement) as to any building or structure, the
Developer shall not, except as permitted by this Agreement,
without prior approval of the Agency, make any total or partial
sale, transfer, conveyance, assignment or lease of the whole or
any part of the Site or of the buildings or structures on the
Site . This prohibition shall not be deemed to prevent the
granting of temporary or permanent easements or permits to
facilitate the development of the Site or to prohibit or
restrict the leasing of any part or parts of a building or
structure for occupancy for a term commencing upon completion.
D. [ §314] Mortgage, Deed of Trust, Sale and
Lease-Back Financing; Rights of
Holders
1 . [ §315 ] No Encumbrances Except
Mortgages, Deeds of Trust, or
Sale and Lease-Back for
Development
Mortgages, deeds of trust and sales and
leases-back are to be permitted before completion of the
construction of the improvements, but only for the purpose of
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securing loans of funds to be used for financing the
acquisition of the Site, the construction of improvements on
the Site, and any other purposes necessary and appropriate in
connection with development under this Agreement. The
Developer shall notify the Agency in advance of any mortgage,
deed of trust or sale and lease-back financing, if the
Developer proposes to enter into the same before completion of
the construction of the improvements on the Site. The words
"mortgage" and "trust deed" as used hereinafter shall include
sale and lease-back. The Developer shall not enter into any
such conveyance for financing without the prior written
approval of the Agency, which approval Agency agrees to give if
any such conveyance for financing is given to a responsible
financial or lending institution or other acceptable person or
entity and such lender shall be deemed approved unless rejected
in writing by the Agency within fifteen ( 15) days after notice
thereof is given to the Agency.
2 . [ §316] Holder Not Obligated to
Construct Improvements
The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct or complete the
improvements or to guarantee such construction or completion;
nor shall any covenant or any other provision in the deed for
the Site be construed so to obligate such holder. Nothing in
this Agreement shall be deemed to construe, permit or authorize
any such holder to devote the Site to any uses or to construct
any improvements thereon, other than those uses or improvements
provided for or authorized by this Agreement.
3 . [ §317 ] Notice of Default to Mortgagee
or Deed of Trust Holders;
Right to Cure
With respect to any mortgage or deed of trust
granted by Developer as provided herein, whenever the Agency
shall deliver any notice or demand to Developer with respect to
any breach or default by the Developer in completion of
construction of the improvements, the Agency shall at the same
time deliver to each holder of record of any mortgage or deed
of trust authorized by this Agreement a copy of such notice or
demand. Each such holder shall (insofar as the rights of the
Agency are concerned) have the right, at its option, within
thirty (30) days after the receipt of the notice, to cure or
remedy or commence to cure or remedy any such default and to
add the cost thereof to the mortgage debt and the lien of its
mortgage. Nothing contained in this Agreement shall be deemed
to permit or authorize such holder to undertake or continue the
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construction or completion of the improvements (beyond the
extent necessary to conserve or protect the improvements or
construction already made) without first having expressly
assumed the Developer' s obligations to the agency by written
agreement satisfactory to the Agency. The holder, in that
event, must agree to complete, in the manner provided in this
Agreement, the improvements to which the lien or title of such
holder relates, and submit evidence satisfactory to the Agency
that it has the qualifications and financial responsibility-
necessary to perform such obligations . Any such holder
properly completing such improvement shall be entitled, upon
compliance with the requirements of Section 321 of this
Agreement, to a Certificate of Completion ( as therein defined) .
4. [ §318] Failure of Holder to Complete
Improvements
In any case where, thirty (30) days after default
by the Developer in completion of construction of improvements
under this Agreement, the holder of any mortgage or deed of
trust creating a lien or encumbrance upon the Site or any part
thereof has not exercised the option to construct, , or if it has
exercised the option and has not proceeded diligently with
construction, the Agency may purchase the mortgage or deed of
trust by payment to the holder of the amount of the unpaid
mortgage or deed of trust debt, including principal and
interest and all other sums secured by the mortgage or deed of
trust. If the ownership of the Site or any part thereof has
vested in the holder, the Agency',, if it so desires, shall be
entitled to a conveyance from the holder to the Agency upon
payment to the holder of an amount equal to the sum of the
following:
a. The unpaid mortgage or deed of trust debt at
the time title became vested in the holder
( less all appropriate credits, including
those resulting from collection and
application of rentals and other income
received during foreclosure proceedings) ;
b. All expenses with respect to foreclosure;
C . The net expense, if any (exclusive of general
overhead) , incurred by the holder as a direct
result of the subsequent management of the
Site or part thereof;
d. The costs of any improvements made by such
holder; and
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e. An amount equivalent to the interest that
would have accrued on the aggregate of such
amounts had all such amounts become part of
the mortgage or deed of trust debt and such
debt had continued in existence to the date
of payment by the Agency.
5 . [ §319 ] Right of the Agency to Cure
Mortgage or Deed of Trust Default
In the event of a mortgage or deed of trust
default or breach by the Developer prior to the completion of
the construction of the improvements on the Site or any part
thereof and the holder of any mortgage or deed of trust has not
exercised its option to construct, the Agency may cure the
default. In such event, the Agency shall be entitled to
reimbursement from the Developer of all proper costs and
expenses incurred by the Agency in curing such default. The
Agency shall also be entitled to a lien upon the Site to the
extent of such costs and disbursements. Any such lien shall be
subject to the construction financing mortgages or deeds of
trust.
E. [ §320) Right of the Agency to Satisfy Other
Liens on the Site After Title Passes
After the conveyance of title and prior to the
completion of construction, and after the Developer has had
written notice and has failed after a reasonable time, but in
any event not less than fifteen ( 15) days, to challenge, cure,
adequately bond against, or satisfy any liens or encumbrances
on the Site which are not otherwise permitted under this
Agreement, the Agency shall have the right but no obligation to
satisfy any such liens or encumbrances.
F. [ §321 ) Certificate of Completion
Promptly after completion of all construction and
development required by this Agreement to be completed by the
Developer upon the Site in conformity with this Agreement, the
Agency shall furnish the Developer with a Certificate of
Completion upon written request therefor by the Developer.
Such Certificate shall be substantially in the form of
Attachment No. 6 hereto. The Agency shall not unreasonably
withhold any such Certificate of Completion. Such Certificate
of Completion shall be a conclusive determination of
satisfactory completion of the construction required by this
Agreement upon the Site and the Certificate of Completion shall
so state. The Agency may also furnish the Developer with a
Certificate of Completion for portions of the improvements upon
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the Site as they are properly completed and ready to use if the
Developer is not in default under this Agreement. After
Y
recordation of such Certificate of Completion, any party then
owning or thereafter purchasing, leasing or otherwise acquiring
any interest therein shall not (because of such ownership,
purchase, lease or acquisition) , incur any obligation or
liability under this Agreement except that such party shall be
bound by (i ) any covenants contained in the Grant Deed
(Attachment No . 4) , lease, mortgage, deed of trust, contract,
other instrument or transfer, or other documents establishing
covenants on the Site in accordance with the provisions of
Section 401 of this Agreement, and (ii ) the provisions of
Section 703 of this Agreement, which shall be applicable
according to its terms .
A Certificate of Completion of construction for the
entire improvement and development of the Site shall be in such
form as to permit it to be recorded in the Recorder' s Office of
Orange County.
If the Agency refuses or fails to furnish a
Certificate of Completion for the Site, or part thereof, after
written request from the Developer, the Agency shall, within
thirty (30) days of written request therefor, provide the
Developer with a written statement of the reasons the Agency
refused or failed to furnish a Certificate of Completion. The
statement shall also contain Agency' s opinion of the actions of
the Developer must take to obtain a Certificate of Completion.
If the reason for such refusal is confined to the immediate
availability of specific items of materials for landscaping,
the Agency will issue its Certificate of Completion upon the
posting of a bond by the Developer with the Agency in an amount
representing a fair value of the work not yet completed. If
the Agency shall have failed to provide such written statement
within said thirty (30) day period, the Developer shall be
deemed entitled to the Certificate of Completion.
Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation
of the Developer to any holder of any mortgage, or any insurer
of a mortgage securing money loaned to finance the
improvements, or any part thereof. Such Certificate of
Completion is not a notice of completion as referred to in the
California Civil Code, Section 3093 .
IV. [ §400] USE OF THE SITE
A. [ §401] Uses
The Developer covenants and agrees for itself, its k
successors, its assigns, and every successor in interest to the
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Site or any part thereof, that during construction and
thereafter, the Developer, such successors and such assignees,
shall devote the Site to the uses specified in the
Redevelopment Plan, the Grant Deed (Attachment No. 4) and this
Agreement for the periods of time specified therein. The
foregoing covenant shall run with the land.
The Developer covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status,
age, handicap, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Site, nor shall the Developer itself or any person claiming
under or through it establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Site . The
foregoing covenants shall run with the land.
The Developer shall refrain from restricting the
rental, sale or lease of the Site on the basis of race, color,
creed, religion, sex, marital status, handicap, national origin
or ancestry of any person. All such deeds, leases or contracts
shall contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
1 . In deeds: "The grantee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through them, that
there shall be no discrimination against or
segregation of, any person or group of persons on
account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or
ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through
him or her, establish or permit any such practice
or practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land
herein conveyed. The foregoing covenants shall
run with the land. "
2 . In leases: "The lessee herein convenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
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5551n/2460/37 -23-
persons claiming under or through him or her, and
this lease is made and accepted upon and subject
to the following conditions :
"There shall be no discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex,
marital status, handicap, age, ancestry or
national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment
of the premises herein leased nor shall the
lessee himself or herself, or any person claiming
under or through him or her, establish or permit
any such practice or practices of discrimination
or segregation with reference to the selection,
location, number, use or occupancy of tenants.-
lessees, sublessees, subtenants or vendees in the
premises herein leased. "
3 . In contracts: "There shall be no discrimination
against or segregation of, any person, or group
of persons on account of race, color, creed,
religion, sex, marital status, age, handicap,
ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the
transferee himself or herself or any person
claiming under or• through him or her, establish
or permit any such practice or practices of
discrimination or segregation with reference to
the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or
vendees of the premises. "
B. [ §402 ] Maintenance of the Site
The Developer shall maintain the improvements on the
Site and shall keep the Site free from any accumulation of
debris or waste materials.
The Developer shall also maintain the landscaping
required to be planted under the Scope of Development
(Attachment No. 5) in a healthy condition. If, at any time,
Developer fails to maintain said landscaping, and said
condition is not corrected after expiration of thirty (30) days
from the date of written notice from the Agency, either the
Agency or the City may perform the necessary landscape
maintenance and Developer shall pay such costs as are
reasonably incurred for such maintenance.
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5551n/2460/37 -24-
Issuance of a Certificate of Completion by the Agency
shall not affect Developer' s obligations under this section.
C . [ §403 ) Rights of Access
The Agency, for itself and for the City and other
public agencies, at their sole risk and expense, reserves the
right to enter the Site or any part thereof at all reasonable
times for the purpose of construction, reconstruction,
maintenance, repair or service of any public improvements or
public facilities located on the Site . Any such entry shall be
made only after reasonable notice to Developer, and Agency
shall indemnify and hold Developer harmless from any costs,
claims, damages or liabilities pertaining to any entry.
D. [ §404] Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
The covenants established in this Agreement and the
deeds shall, without regard to technical classification and
designation, be binding for the benefit and in favor of the
Agency, its successors and assigns, as to those covenants which
are for its benefit. The covenants, contained in this
Agreement and the Deeds shall remain in effect for a period of
fifteen ( 15) years after the date of recordation of a
Certificate of Completion issued pursuant to Section 321 of
this Agreement. The covenants against racial discrimination
shall remain in perpetuity.
The Agency is deemed the beneficiary of the terms, and
provisions of this Agreement and of the covenants running with
the land, for and in its own rights and for the purposes of
protecting the interests of the community and other parties,
public or private, in whose favor and for whose benefit this
Agreement and the covenants running with the land have been
provided. The Agreement and the covenants shall run in favor
of the Agency, without regard to whether the Agency has been,
remains or is an owner of any land or interest therein in the
Site or in the Project Area. The Agency shall have the right,
if the Agreement or covenants are breached, to exercise all
rights and remedies, and to maintain any actions or suits at
law or in equity or other proper proceedings to enforce the
curing of such breaches to which it or any other beneficiaries
of this Agreement and covenants may be entitled.
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5551n/2460/37 -25-
V. [ §500] GENERAL PROVISIONS
A. [ §501 ] Notices, Demands and Communications
Between the Parties
Written notices, demands and communications between
the Agency and the Developer shall be sufficiently given if
delivered by hand (and a receipt therefor is obtained or is
refused to be given) or dispatched by registered or certified
mail, postage prepaid, return receipt requested, to the
principal offices of the Agency and the Developer. Such
written notices, demands and communications may be sent in the
same manner to such other addresses as either party may from
time to time designate by mail as provided in this Section 501 ..
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked
if delivered by registered or certified mail .
B. [ §502 ] Conflicts of Interest
No member, official or employee of the Agency shall
have any personal interest, direct or indirect, in this
Agreement, nor shall any member, official or employee
participate in any decision relating to the Agreement which
affects his personal interests or the interests of any
corporation, partnership or association in which he is directly
or indirectly interested. No member, official or employee of
the Agency shall be personally fiable to the Developer, or any
successor in interest, in the event of any default or breach by
the Agency, or for any amount which may become due to the
Developer or successor or on any obligations under the terms of
this Agreement.
The Developer warrants that it has not paid or given,
and will not pay or give, any third party any money or other
consideration for obtaining this Agreement.
C. [ §503 ] Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be
in default, and all performance and other dates specified in
this Agreement shall be extended, where delays or defaults are
due to: war; insurrection; strikes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public
enemy; epidemics; quarantine restrictions; freight embargoes;
lack of transportation; governmental restrictions or priority;
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litigation; unusually severe weather; inability to secure
necessary labor, materials or tools; delays of any contractor,
subcontractor or supplier; acts or omissions of the other
party; acts or failures to act of the City of Huntington Beach
or any other public or governmental agency or entity (other
than the acts or failures to act of the Agency which shall not
excuse performance by the Agency) ; or any other causes beyond
the control or without the fault of the party claiming an
extension of time to perform. Notwithstanding anything to the
contrary in this Agreement, an extension of time for any such
cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause,
if notice by the party claiming such extension is sent to the
other party within thirty (30) days of the commencement of the
cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of Agency and
Developer.
Developer is not entitled pursuant to this Section
503 to an extension of time to perform because of past,
present, or future difficulty in obtaining suitable temporary
or permanent financing for the acquisition or development of
the Site.
D. [ §504] Nonliability of Officials and Employees of
the Agency
No member, official or employee of the Agency or the
City shall be personally liable 'to the Developer, or any
successor in interest, in the event of any default or breach by
the Agency (or the City) or for any amount which may become due
to the Developer or its successors, or on any obligations under
the terms of this Agreement.
E. [ §505 ] Inspection of Books and Records
The Agency has the right at all reasonable times to
inspect the books and records of the Developer pertaining to
the Site as pertinent to the purposes of this Agreement. The
Developer also has the right at all reasonable times to inspect
the public records of the Agency pertaining to the Site as
pertinent to the purposes of the Agreement.
VI . [ §600] DEFAULTS AND REMEDIES
A. [ §601 ] Defaults--General
Subject to the extensions of time set forth in
Section 503, failure or delay by either party to perform any
term or provision of this Agreement constitutes a default under
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5551n/2460/37 -27-
1 � .
this Agreement. The party who so fails or delays must
immediately commence to cure, correct, or remedy such failure
or delay, and shall complete such cure, correction or remedy
with diligence.
The injured party shall give written notice of
default to the party in default, specifying the default
complained of by the injured party. Except as required to
protect against further damages, and except for Sections 312
and 314 of this Agreement, the injured party may not institute
proceedings against the party in default until thirty (30) days
after giving such notice. Failure or delay in giving such
notice shall not constitute a waiver of any default, nor shall
it change the time of default.
B. [ §602 ] Legal Actions
1 . [ §603 ] Institution of Legal Actions
In addition to any other rights or remedies and
subiect to the restrictions in Section 601, either party may
institute legal action to cure, correct or remedy any default,
to recover damages for any default, or to obtain any other
remedy consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the ..,�
County of Orange, State of California, in an appropriate
municipal court in that county, or in the Federal District
Court in the Central District of California.
2 . [ §604] Applicable Law
The laws of the State of California shall govern
the interpretation and enforcement of this Agreement.
3 . [ §605 ] Acceptance of Service of Process
In the event that any legal action is commenced
by the Developer against the Agency, service of process on the
Agency shall be made by personal service upon the Director or
in such other manner as may be provided by law.
In the event that any legal action is commenced
by the Agency against the Developer, service of process on the
Developer shall be made by personal service upon the Developer
and shall be valid whether made within or without the State of
California or in such other manner as may be provided by law.
C. [ §606] Rights and Remedies Are Cumulative
WON
Except as otherwise expressly stated in this
Agreement, the rights and remedies of the parties are
cumulative, and the exercise by either party of one or more of
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5551n/2460/37 -28-
such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
D. [ §607 ] Inaction Not a Waiver of Default
Any failures or delays by either party in asserting
any of its rights and remedies as to any default shall not
operate as a waiver of any default or of any such rights or
remedies, or deprive either such party of its right to
institute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or
remedies.
E. [ §608 ] Remedies and Rights of Termination Prior to
Conveyance
1 . [ §609 ] Damages.
If either party defaults with regard to any of
the provisions of this Agreement, the non-defaulting party
shall serve written notice of such default upon the defaulting
party. If the default is not cured or commenced to be cured by
the defaulting party within thirty (30) days after service of
the notice of default (or within such other period as is set
forth herein) , the defaulting party shall be liable to the
other party for any damages caused by such default.
2 . [ §610] Specific Performance
If either party defaults under any of the provisions
of this Agreement, the non-defaulting party shall serve written
notice of such default upon the defaulting party. If the
default is not cured by the defaulting party within thirty (30)
days of service of the notice of default, or such other time
limit as may be set forth herein with respect to such default,
the non-defaulting party at its option may thereafter (but not
before) commence an action for specific performance of terms of
this Agreement.
3 . [ §611 ] Termination by the Developer
In the event that the Agency does not tender
conveyance of the Sales Parcel or possession thereof, in the
manner and condition, and by the date provided in this
Agreement, and any such failure shall not be cured within
thirty (30) days after the date or written demand by the
Developer, then this Agreement may, at the option of the
Developer, be terminated by written notice thereof to the
Agency; upon such termination, except with respect to the
10-25-89
5551n/2460/37 -29-
return of the Deposit as provided in Section 108 hereof,
neither the Agency nor the Developer shall have any further
rights against or liability to the other under the Agreement
with respect to the Sales Parcel . In the event of the Agency
failure or default with respect to either event set forth in
Section 611( a) or (b) above, said right of termination provided
in Section 611 shall be Developer' s sole and exclusive remedy.
Upon termination of this Agreement, all monies or documents
deposited by either party into escrow shall be returned to the
party making such deposit.
4. 1 §6121 Termination by the Agency
In the event that prior to the Conveyance:
(a) The Developer (or any successor in interest)
assigns or attempts to assign the Agreement
or any rights therein or in the Site in
violation of this Agreement; or
(b) There is a change in the ownership of the
Developer contrary to the provisions of
Section 108 hereof; or
(c) The Developer does not submit the Good Faith
Deposit by the time established therefor in
the Schedule of Performance (Attachment No.
k
3) ; or
(d) The Developer does not submit certificates of
insurance, construction plans, drawings and
related documents as required by this
Agreement, in the manner and by the dates
respectively provided in this Agreement
therefor any such default or failure shall
not be cured within forty-five (45 ) days
after the date of written demand therefor by
the Agency; or
(e) The Developer fails to satisfy the Conditions
Precedent to the Conveyance by the time
established therefor in the Schedule of
Performance (Attachment No . 3 ) ; or
(f) The Developer does not take title to the
Sales Parcel under tender of conveyance by
the Agency pursuant to this Agreement and
such failure is not cured within thirty (30)
days of demand therefor by the Agency;
10-25-89
5551n/2460/37 -30-
then this Agreement and any rights of the Developer or any
assignee or transferee in the Agreement, or arising therefrom
with respect to the Agency or the Site, shall, at the option of
the Agency, be terminated by the Agency. In the event of
termination under this Section 612, the Agency shall retain the
Good Faith Deposit as liquidated damages and as its property
without any reduction, offset, or recoupment whatsoever, and
thereafter neither party shall have any rights against the
other under this Agreement.
IN THE EVENT OF TERMINATION UNDER THIS SECTION 512, THE GOOD
FAITH DEPOSIT OF $25, 000, AS SET OUT IN THE EXCLUSIVE
NEGOTIATING AGREEMENT HERETOFORE ENTERED INTO BETWEEN THE
PARTIES, SHALL BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES
AS THE SOLE AND EXCLUSIVE REMEDY OF THE AGENCY HEREUNDER. IN
THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY
REASON THEREOF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD
INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF
TAX REVENUES THEREFROM TO THE CITY AND THE AGENCY, THE DELAY OR
FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE
REDEVELOPMENT PLAN, AND LOSS OF OPPORTUNITY TO ENGAGE IN OTHER
POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE
AGENCY. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE
AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF
THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO
THEM THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF
THE GOOD FAITH DEPOSIT (WITH ANY INTEREST THEREON) , AND SUCH
AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE
TOTAL OF ALL LIQUIDATED DAMAGES ;FOR ANY AND ALL SUCH DEFAULTS
AND NOT AS A PENALTY. IN THE EVENT THAT THE DEVELOPER SHOULD
CHALLENGE THE APPLICABILITY OR EFFICACY OF THIS PARAGRAPH OR IF
THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE
AGENCY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES
OTHERWISE PROVIDED BY LAW.
THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS
LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURE BELOW:
eloper Initi Here Agenc Initial Here
F. [ §613 ] Remedies of the Parties for Default After
Passage of Title and Prior to Completion of
Construction
1 . [ §614] Termination and Damages
After conveyance of said title and prior to the
recordation of a Certificate of Completion, if either the
Developer or the Agency defaults with regard to any of the
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5551n/2460/37 -31-
provisions of this Agreement, the nondefaulting party shall
serve written notice of such default upon the defaulting
party. If the default is not cured by the defaulting party
within thirty (30) days after service of the notice of default, J
the defaulting party shall be liable to the other party for any
damages caused by such default.
2 . [ §615 ] Action for Specific Performance
If either the Developer or the Agency defaults
under any of the provisions of this Agreement after the
conveyance of title and prior to the recordation of a
Certificate of Completion for the improvements and development
to be made thereon, the nondefaulting party shall serve written.
notice of such default upon the defaulting party. If the
default is not commenced to be cured by the defaulting party -
within thirty (30) days after service of the notice of default,
the nondefaulting party at its option may institute an action
for specific performance of the terms of this Agreement.
VII . [ §700] SPECIAL PROVISIONS
A. [ §701 ] Submission of Documents to the Agency for
Approval.
Whenever this Agreement requires the Developer to
submit plans, drawings or other documents to the Agency for
approval , which shall be deemed approved if not acted on by the
Agency within the specified time, said plans, drawings or other
documents shall be accompanied by a letter stating that they
are being submitted and will be deemed approved unless rejected
by the Agency within the stated time. If there is not time
specified herein for such Agency action, the Developer may
submit a letter requiring Agency approval or rejection of
documents within thirty (30) days after submission to the
Agency or such documents shall be deemed approved.
B. [ §702 ] Agency Right to Acquire in the Event of
Default by the Developer
Subject to the conditions set forth below in Section
703 , Agency waives its legal right to acquire the Participating
Parcel by purchase or eminent domain to enable the Developer to
use and develop the Site in accordance with the Redevelopment
Plan as more particularly described herein, provided that
certain agreements, restrictions, and covenants which are
imposed upon the use of the Site by this Agreement shall be,
and are, carried out in accordance with this Agreement.
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5551n/2460/37 -32-
C. [ §703 ] Agency Demolition of Sales Parcel
Agency agrees to perform all demolition work at
Agency expense as to the buildings and structures situated
within the Sales Parcel .
The Agency is not in any way responsible for
demolition or removing any subsurface obstructions on the
Participating Parcel . The Agency shall not be responsible for
soil conditions or placement of fill on the Participating
Parcel. It shall be the sole responsibility of Developer, at
Developer' s expense, to investigate and determine the soil
conditions of the Participating Parcel and the suitability of
such parcel for the development to be constructed by
Developer. If the soil conditions of the Participating Parcel
are not in all respects entirely suitable for the use or uses
to which the Participating Parcel will be put, then it is the
sole responsibility and obligation of Developer to take such
action as may be necessary to place the Participating Parcel
and the soil conditions of the Participating Parcel in all
respects in a condition entirely suitable for the development.
D. [ §704] Real Estate Commission
Each of the Agency and the Developer represents to
the other party that it has not engaged the services of any
finder or broker and that it is not liable for any real estate
commissions, broker' s fees, or finder' s fees which may accrue
by means of the acquisition of the Participating Parcel or the
Sales Parcel, and agrees to hold harmless the other party from
such commissions or fees as are alleged to be due from the
party making such representations.
E. [ §705 ] Successors In Interest
The terms, covenants, conditions and restrictions of
this Agreement shall extend to and shall be binding upon and
inure to the benefit of the heirs, executors, administrators,
successors and assigns of the Developer. .
Upon the termination of the restrictions imposed by
Section 108 of this Agreement, which terminate upon the
issuance by the Agency of a Certificate of Completion for the
entire Site, all of the terms, covenants, conditions and
restrictions of this Agreement which do not terminate upon the
issuance by the Agency of the Certificate of Completion for the
entire Site shall be deemed to be, and shall, constitute terms,
covenants, conditions and restrictions running with the land.
10-25-89
5551n/2460/37 -33-
F. [ §706] Amendments to this Agreement
Developer and Agency agree to mutually consider
reasonable requests for amendments to this Agreement which may ]
be made by lending institutions, or Agency' s counsel or
financial consultants, provided said requests are consistent
with this Agreement and would not substantially alter the basic
business terms included herein.
VIII . [ §800] ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in three (3 ) duplicate
originals, each of which is deemed to be an original'. This
Agreement includes pages 1 through 35 and Attachments 1 through
6, which constitute the entire understanding and agreement of
the parties.
This Agreement integrates all of the terms and conditions
mentioned herein or incidental hereto, and supersedes all
negotiations or previous agreements between the parties or
their predecessors in interest with respect to all, or any part
of the subject matter hereof.
All waivers of the provisions of this Agreement must be
in writing by the appropriate authorities of the Agency and the
Developer, and all amendments hereto must be in writing by the
appropriate authorities of the Agency and the Developer.
'
In any circumstance where under this Agreement either
party is required to approve or disapprove any matter, approval
shall not be unreasonably withheld.
IX. [ §900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by the Developer and
delivered to the Agency, must be authorized, executed and
delivered by the Agency on or before thirty (30) days after
signing and delivery of this Agreement by Developer or this
Agreement shall be void, except to the extent that the
Developer shall consent in writing to a further extension of
time for the authorization, execution and delivery of this
Agreement. The date of this Agreement shall be the date when
it shall have been signed by the Agency.
10-25-89
5551n/2460/37 -34-
IN WITNESS WHEREOF, the Agency and the Developer have
signed this Agreement on the respective dates set forth below.
REDEVELOPMENT AGENCY OF THE CITY
OF HUNTINGTON BEACH
1P _ 19_ BY a, cat..► t.�J
Chairman
ATTEST:
e414- �
Clerk
APPROVED AS TO FORM:
9
Agency C unsel
//-,2 9-r74e�W
APPROVED AS TO CONTENT:
Special Agency Courygel
P ILIP Z AKIS
R XANNE ZISAKIS
10-25-89
5551n/2460/37 -35-
STATE OF CALIFORNIA )
ss.
COUNTY OF Q r ange, >
x
On thi s I(a th day of November 199 , before me,
the undersigned, a Notary Public in an or 0,�j -§Tate,personally appeared- p Cyw ` cno- ` - • (or
proved to me on the basis of satisfactory evidence ) to be the
person who executed this instrument as the Chairman of THE
REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH and
acknowledged to me that said Agency executed it.
WITNESS my hand and official seal .
FjVNOTARY OFFICIAL SEAL PUBLIC - CALIFORNIAORANGE COUNTY
comm. expires 1UL 12, 1993
(SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF OrQ,nge )
On this (oi Yl day of 19913, before me,
the undersigned, a Notary Public in and for said State,
personally appeared PHILIP ZISAKIS, personally known to me or
proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and
acknowledged that he executed the same.
WITNESS my hand and official seal .
( SEAL)
OFFICIAL SEAL
R J LAZAR
NOTARY PUBLIC -CALIFORNIA
a ORANGE COUNTY
„.* my comm. expires JUL 12, 1993 1
10-25-89
5551n/2460/37
STATE OF CALIFORNIA )
ss.
COUNTY OF � -nq e- )
On this fih day of WVCMbe,-- 19 gq before me,
the undersigned, a Notary Public in and for said State,
personally appeared ROXANNE ZISAKIS,
proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and
acknowledged that she executed the same .
WITNESS my hand and official seal .
(SEAL)
OFFICIAL SEAL
•�•:, .R J LAZAR
e. r
m NOTARY PUBLIC-CALIFORNIA
ORANGE COUNTY
My comm. expires JUL 12, 1993
10-25-89
5551n/2460/37
f T IV I UP—. ._.
� I C � l 4 c.r
i G � •C'/ore/icr Pb, ce
1
I q 4
Li
1 a rce I ,x. �a r C e.
- - -- � � 107
- ---- ------- ----- - CY`PR� - - - -
SITE
"LEGAL DESCRIPTION`
The Easterly 194 . 00 feet of Lot 4, Block A, Tract 436,
as shown on a Map recorded in Book 16, Page 28 , Records
of Orange County California.
ATTACHMENT NO. 2
1 of 1
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
b
I. GENERAL PROVISIONS
1. Execution of Agreement Not later than forty-five (45)-
by Agency. The Agency days after the date of execution
shall approve and execute this and submission of three (3) copies
Agreement, and shall deliver of this Agreement by the Developer.
one (1) copy thereof to
the Developer.
2. Submission of Good Faith Prior to approval of this
Deposit. Developer submits Agreement by the Agency.
the Good Faith Deposit.
3. Submission of Construction Within four (4) weeks after City
Drawings and Related Documents. Planning Commission approval of site
Developer shall submit plan/land use applications (or within
construction drawings and all four (4) weeks after City Council
other plans and documents approval of said application, if the
required by Section 304. Planning Commission approval is
appealed) .
4. Agency Review of Construction Within two (2) weeks after submittal
Drawings and Related Documents. , by Developer.
Agency approves or disapproves
construction drawings and other
documents or plans.
5. Submission of Revised Within three (3) weeks after
Construction Drawings or disapproval, until approval is
Related Documents. If original granted.
submittal or resubmittal dis-
approved, Developer revises
disapproved plans or documents
and resubmits to Agency.
II. CONSTRUCTION DOCUMENTS AND BUILDING PERMIT
6. Submission of Complete Construc- Within four (4) weeks after approval
tion Drawings and Landscaping of the Construction Drawings.
to the Agency complete Construc-
tion (working) Drawings and a
Final Landscaping Plan, Sign
Program, and Finish Grading
Plan.
10-25-89 ATTACHMENT NO. 3
5551n/2460/37 Page 1 of 3
7. Agency Review of Complete Within two (2) weeks after
Drawings and Plans. The Agency submittal.
shall approve or disapprove
the Complete Construction
(working) Drawings and the
Landscaping Plan, Sign Program,
and Finish Grading Plan.
8. Revisions, if any. Developer Within three (3) weeks after
shall prepare revised receipt of Agency's comments.
Construction (working) Draw-
ings as necessary, and submit
them to Agency for review.
9. Final Review of Complete Within two (2) weeks after submittal
Drawings. The Agency shall by Developer.
approve the revisions submitted
by the Developer provided that
the revisions necessary to
accommodate the Agency' s com-
ments have been made.
10. Obtaining of Building Permits. Not later than six (6) weeks after
Developer shall obtain all final approval of complete drawings.
building and other permits Approval of the Finish Grading Plan,
needed to commence construction completion of Final Landscaping Plan
of the Developer Improvements. and Sign Program, the readiness to
Agency shall provide appropriate' close of the Escrow, and the satis-
assistance to Developer as faction of the Conditions Precedent
requested from time to time in to the Conveyance are all conditions
dealing with all City agencies. to the issuance of building permits.
Building permits shall be obtained
not later than May 15, 1990.
III. SITE ASSEMBLAGE
11. Opening of Escrow. Agency Within eight (8) weeks after execution
shall open Escrow for sale of of this Agreement.
the Sales Parcel to Developer.
12. Conditions Precedent. Not later than May 1, 1990,
Developer satisfies all of the
Conditions Precedent to
Conveyance.
13. Deposit of Purchase Price. Not less than two (2) business
Developer deposits into the days prior to the close of escrow.
Escrow the Purchase Price and
proof of insurance (conforming
to Section 308) with the Escrow
Agent.
10-25-89 ATTACHMENT NO. 3
cr,C1, i->nGn /'2'1 Tn.--..-, ") - c 7
14. Conveyance. Agency conveys Not later than May 15, 1990,
Sales Parcel to Developer. provided that the Developer has
satisfied the Conditions Precedent to
the Conveyance.
IV. CONSTRUCTION PHASE
15. Commencement of Construction. Not later than forty-five (45)• days
Developer shall commence con- after the Conveyance.
struction of the Developer
Improvements.
16. Completion of Construction. Not later than twelve '(12) months
Developer shall complete after the earlier of (i) the
construction of all of the Conveyance or (ii) the commencement
Developer Improvements. of construction.
10-25-89 ATTACHMENT NO. 3
5551n/246O/37 Page 3 of 3
ATTACHMENT NO. 4
Recording Requested by:
When Recorded Return to and
Mail Tax Statements to:
GRANT DEED
For a valuable consideration receipt of which is hereby acknowledged,
The REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public
body, corporate and politic, of the State of California, herein called
"Grantor" acting to carry out the Redevelopment Plan, herein called
"Redevelopment Plan" for the Redevelopment Project for the Oakview Project,
herein called "Project", under the Community Redevelopment Law of California,
hereby grants to PHILIP ZISAKIS and ROXANNE ZISAKIS, husband and wife, herein
called "Grantee", the real property hereinafter referred to as "Property",
described in Exhibit A attached hereto and incorporated herein, subject to the
existing easements, restrictions and govenants on record described therein;
providing further, Agency shall retain and Developer shall convey access
easements as shown on the Site Map ("Agency Access Easement") , attached hereto
as Exhibit B and incorporated herein, for the benefit of the Agency and the
adjacent properties as also shown on the Site Map (Exhibit B) (the "Benefitted
Properties") .
1. Grantor excepts and reserves from the conveyance herein
described all interest of the Grantor in oil, gas, hydrocarbon substances and
minerals of every kind and character lying more than 500 feet below the
surface, together with the right to drill into, through, and to use and occupy
all parts of the Property lying more than 500 feet below the surface thereof
for any and all purposes incidental to the exploration for and production of
oil, gas, hydrocarbon substances or minerals from said site or other lands,
but without, however, any right to use either the surface of the Property or
any portion thereof within 500 feet of the surface for any purpose or purposes
whatsoever.
2. Said Property is conveyed in accordance with and subject to the
Redevelopment Plan which was approved and adopted on , 19 by
Ordinance No. of the City Council of the City of Huntington Beach and a
Disposition and Development Agreement entered into between Grantor and Grantee
dated (the "DDA") , a copy of which is on file with the
Grantor at its offices as a public record and which is incorporated herein by
reference.
10-25-89 ATTACHMENT NO. 4
5551n/246O/37 Page 1 of 5
3. The Grantee shall devote the Property only to the development AN
permitted and the uses specified in the applicable provisions of the
Redevelopment Plan for the Project (or any amendments thereof approved
pursuant to paragraph 10 of this Grant Deed) , and this Grant Deed, whichever
document is more restrictive.
4. The Property is conveyed to grantee at a purchase price, herein
called "Purchase Price" , determined in accordance with the uses permitted.
Therefore, Grantee hereby covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Property that the Grantee,
such successors and such assigns, shall develop, maintain, and use the
Property only as follows :
(a) Grantee shall develop the Property as required by the DDA,
and with parking as approved by the City of Huntington Beach.
(b) Grantee shall maintain the improvements on the Property and
shall keep the Property free from any accumulation of debris or waste
materials. Grantee shall also maintain the required landscaping in a healthy
condition.
If, at any time, Grantee fails to maintain the said landscaping,
and said condition is not corrected after expiration of five (5) days from the
date ,of written notice from the Grantor, either the Grantor, or the City of
Huntington Beach may perform the necessary maintenance and Grantee shall pay
such costs as are reasonably incurred for such maintenance.
(c) Grantee shall only sell, transfer or convey the Property as
a whole and is not permitted to subdivide the Property without the prior
approval of the Grantor, or the City df Huntington Beach if the Agency is no
longer in existence at the date of request for approval.
(d) Notwithstanding Grantor' s reservation of an easement over
the Access Easement, if at any time vehicular access is dedicated across the
front of the parcel immediately to the northeast of the Property and Beach
Boulevard, Grantor shall relinquish such portion of the Access Easement as is
no longer needed.
5. Prior to recordation of a Certificate of Completion issued by
the Grantor for the improvements to be constructed on the Property:
(a) The Grantee shall not make any sale, transfer, conveyance,
or assignment of the Property or any part thereof or any interest therein,
without the prior written consent of the Grantor except as permitted by
paragraph 5(b) of this Grant Deed. In the event that the Grantee does sell,
transfer, convey, or assign any part of the Property, buildings, or structures
thereon prior to the recordation of a Certificate of Completion, the Grantor
shall be entitled to increase the Purchase Price paid by the Grantee by the
amount that the consideration payable for such assignment or transfer is in
excess of the Purchase Price paid by the Grantee, plus the cost of
10-25-89 ATTACHMENT NO. 4
5551n/246O/37 Page 2 of 5
Y �
improvements, including carrying charges. The consideration payable for the
assignment or transfer, to the extent it is in excess of the amount so
authorized, shall belong and be paid to the Grantor and until so paid the
Grantor shall have a lien on the Property and any part involved for such
amount. This prohibition shall not be deemed to prevent the granting of
easements or permits to facilitate the development of the Property.
(b) The Grantee shall not place or suffer to be placed on the
Property any lien or encumbrance other than mortgages, deeds of trust, or any
other form of conveyance required for financing of the acquisition, of the
Property, the construction of improvements on the Property, and any other
expenditures necessary and appropriate to develop the Property. The Grantee
shall not enter into any such conveyance for financing without prior written
approval of Grantor. No approval will be given for a conveyance of the
property to finance the construction or improvements on real property other
than the real property described in Exhibit A hereto.
6. The Grantee agrees for itself and any successor in interest not
to discriminate upon the basis of race, color, creed or national origin in the
sale, lease, or rental or in the use or occupancy of the Property hereby
conveyed or any part thereof. Grantee covenants by and for itself, its
successors, and assigns, and all persons claiming under or through them that
there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment
of the Property, nor shall the Grantee itself or any person claiming under or
through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, 'Location,
number, use or occupancy of tenants, lessees, sub-tenants, sublessees, or
vendee in the Property. The foregoing covenants shall run with the land.
7. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant Deed shall
defeat or render invalid or in any way impair the lien or charge of any
mortgage or deed of trust or security interest permitted by paragraph 5(b) of
this Grant Deed; provided, however, that any subsequent owner of the Property
shall be bound by such remaining covenants, conditions, restrictions,
limitations and provisions, whether such owner's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
S. All covenants contained in this Grant Deed shall be covenants
running with the land. The covenants contained in paragraph 5 and Grantee's
obligation to develop the improvements on the Property provided in paragraph
4(a) of this Grant Deed shall terminate and shall become null and void upon
recordation of a Certificate of Completion issued by Grantor for the
Property. Grantee's obligation to maintain and use the improvements
constructed as provided in paragraph 4 shall continue in effect for a period
of fifteen (15) years after the date of recordation of a Certificate of
Completion issued by Grantor, and shall terminate and be of no further force
or effect at the expiration of said fifteen (15) year period. . Every covenant
contained in this Grant Deed against discrimination contained in paragraph 7
of this Grant Deed shall remain in perpetuity.
10-25-89 ATTACHMENT NO. 4
5551n/2460/37 Page 3 of 5
9. All covenants without regard to technical classification or
designation shall be binding for the benefit of the Grantor, and such
covenants shall run in favor of the Grantor for the entire period during which
such covenants shall be in force and effect, without regard to whether the
Grantor is or remains an owner of any land or interest therein to which such
covenants relate. The Grantor, in the event of any breach of any such
covenants, shall have the right to exercise all the rights and remedies and to
maintain any actions at law or suits in equity or other proper proceedings to
enforce the curing of such breach.
10. Both before and after recordation of a Certificate of
Completion, both Grantor, its successors and assigns, and Grantee and the
successors and assigns of Grantee in and to all or any part of the fee title
to the Property shall have the right to consent and agree to changes in, or to
eliminate in whole or in part, any of the covenants, easements or restrictions
contained in this Grant Deed without the consent of any tenant, lessee,
easement holder, licenses, mortgagee, trustee, beneficiary under a deed of
trust or any other person or entity having any interest less than a fee in the
Property. The covenants contained in this Grant Deed, without regard to
technical classification shall not benefit or be enforceable by any owner of
any other real property within or outside the Project area, or any person or
entity having any interest in any other such realty. Any amendments to the
Redevelopment Plan which change the uses or development permitted on the
Property, or otherwise change any of the restrictions or controls that apply
to the Property, shall require the written consent of Grantee or the
successors and assigns of Grantee in and to all or any part of the fee title
to the Property, but any such amendment shall not require the consent of any
tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary
under a deed of trust or any other person or entity having any interest less
than a fee in the Property.
11 . The covenants contained in this Grant Deed shall be construed as
covenants running with the land and not as conditions which might result in
forfeiture of title.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this
instrument to be executed on their behalf by their respective officers
hereunto duly authorized, this day of 1989.
REDEVELOPMENT AGENCY OF THE CITY
OF HUNTINGTON BEACH
By
By
10-25-89 ATTACHMENT NO. 4
5551n/2460/37 Page 4 of 5
The provisions of this Grant Deed are hereby approved and accepted.
PHILIP ZISAKIS
ROXANNE ZISAKIS
10-25-89 ATTACHMENT NO. 4
5551n/246O/37 Page 5 of 5
EXHIBIT A
LEGAL DESCRIPTION
The Easterly 194 . 00 feet of Lot 4, Block A Tract 436,
as shown on a Map recorded in Book 16 , Page 28 , Records
of Orange County, California.
Excepting therefrom the Easterly 107 . 00 feet of the
Southerly 48 . 00 feet.
EXHIBIT A TO ATTACHMENT NO. 4
Page 1 of 1 ""
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EXHIB�,T B TO ATTACHMENT
i Page 1 of 1
ATTACHMENT NO. 5 AN I
SCOPE OF DEVELOPMENT
I . DEVELOPER IMPROVEMENTS
A. On-Site Requirements
Developer shall construct an approximately 4, 170 square foot
first floor addition to the existing 1,250 square foot first
floor glass shop. The Developer shall also construct a second
story office area of approximately 5, 700 square feet second and
third floor added to the existing 1, 200 square foot second
floor. The total square footage of the resulting development
is approximately 12 , 320 square feet. Required parking shall be
pursuant to the Huntington Beach Ordinance Code subject to
review by the Planning Commission of the City of Huntington
Beach. All parking shall be met on site, except as provided in
Section 206 of the Agreement. The development shall be located
as provided in the site plan attached hereto as Exhibit "A" .
Building setbacks, landscaping, building height, and parking
layout shall be subject to review and approval by the Planning
Commission. Building architecture, colors and materials shall
be compatible with the existing glass shop and with Guardian
Centre, and shall be subject to final review and approval by
the Design Review Board.
B. Offsite Requirements
Developer shall be responsible for relocating all utility poles
and facilities.
Developer shall also be responsible for construction of those
offsites not cons ranted hy_ the Aaencv pursuant to _Section I_I
below.
All signs shall be approved by the City of Huntington Beach
Planning Department and/or Planning Commission and shall be
compatible with existing signage for Guardian Centre.
II . AGENCY IMPROVEMENTS
The Agency shall construct the following offsites required for
the development of the Site=, the approximate cost of which is $42 , 314
Curb, gutter and sidewalk
Pave-out of the street
Storm drains and catch basins ,
Extension of water main
Other improvements covered by the North Oakview Street
Improvement program
10-25-89 ATTACHMENT NO. 5
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EXHIB;T A TO ATTACHMENT N0. 5
i Page 1 0f 1 '
ATTACHMENT NO. 6
Recording Requested by:
When Recorded Return to and
Mail Tax Statements to:
CERTIFICATE OF COMPLETION FOR
CONSTRUCTION AND DEVELOPMENT
WHEREAS, by Grant Deed dated and
recorded on as No. of
the official records of the County Recorder of the County of
Orange, California, the Redevelopment Agency of the City of
Huntington Beach, a public body, corporate and politic,
hereinafter referred to as "Agency" , conveyed to PHILIP ZISAKIS
and ROXANNE ZISAKIS, husband and wife, hereinafter referred to �•
as the "Developer" , certain real property situated in the City }
of Huntington Beach, California described on Exhibit "A" s
attached hereto and made a part hereof; and
WHEREAS, as referenced in said Grant Deed, the Agency
shall furnish the Developer with a Certificate of Completion
upon completion of construction and development, which
certificate shall be in such form as to permit it to be
recorded in the Recorder' s Office of Orange County; and
WHEREAS, such certificate shall be conclusive
determination of satisfactory completion of the construction
and development required by the Grant Deed; and
WHEREAS, the Agency has conclusively determined that
the construction and development on the above described real
property required by the Grant Deed has been satisfactorily
completed; and
NOW THEREFORE,
1 . As provided in said Grant Deed, the Agency does
hereby certify that the construction and development has been
fully and satisfactorily performed and completed.
10-25-89 ATTACHMENT NO. 6
5551n/2459/37 Page 1 of 2
2 . Nothing contained in this instrument shall modify
in any other way any other provisions of said Deed.
IN WITNESS WHEREOF, the Agency has executed this
certificate this day of 19
REDEVELOPMENT AGENCY OF THE CITY
OF HUNTINGTON BEACH
By
ATTEST:
10-25-89 ATTACHMENT NO. 6
5551n/2459/37 Paae 2 of 2
EXHIBIT A
LEGAL DESCRIPTION
3
The Easterly 194 . 00 feet of Lot 4, Block A Tract 436,
as shown on a Map recorded in Book 16 , Page 28, Records
of Orange County, California.
Excepting therefrom the Easterly 107 . 00 feet of the
Southerly 48 . 00 feet.
EXHIBIT A TO ATTACHMENT NO. 6
Page 1 of 1
f
K'iW1
7
OPTION PARCEL
"LEGAL DESCRIPTION"
The Westerly 19.50 feet of the Easterly 194 . 00 feet of
Lot 4, Block A, Tract 436, as shown on a Map recorded
in Book 16 , Page 28 , Records of Orange County,
California.
E _
R
J
T
ATTACHMENT NO. 7
1 of 1
Res. No. 196
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF HUNTINGTON BEACH)
I, CONNIE BROCKWAY, Clerk of the Redevelopment Agency of the
City of Huntington Beach, California, DO HEREBY CERTIFY that the foregoing
resolution was duly adopted by the Redevelopment Agency of the City of
Huntington Beach at a meeting of said Redevelopment Agency held on the
loth day of November 19_, and that it was so adopted
by the following vote:
AYES: Members:
MacAllister, Winchell, Green, Mays, Silva, Erskine
NOES: Members:
None
ABSENT: Members:
ABSTAIN: Bannister
Clerk of the eve opment gency of
the City of Huntington Beach, Ca.